Citation Nr: 1514062
Decision Date: 04/01/15 Archive Date: 04/09/15
DOCKET NO. 05-39 279 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for coronary artery disease (CAD).
3. Entitlement to an increased disability evaluation for cervical strain with degenerative changes, currently rated as 30 percent disabling.
4. Entitlement to a separate compensable rating for post-surgical scars associated with the service-connected cervical strain with degenerative changes.
5. Entitlement to an increased disability evaluation for left shoulder impingement with degenerative changes and radiculopathy, currently rated as 20 percent disabling.
6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. Coyle, Counsel
INTRODUCTION
The Veteran served on active duty from April 1964 to March 1967, with subsequent service in the Army National Guard from August 1981 to October 2002.
These matters come before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the above Regional Office (RO). The Veteran also testified at a hearing held at the RO in September 2008, before the undersigned Veterans Law Judge.
In March 2011, the Board remanded the case for further development, which has been completed. The matter is now back before the Board for appellate review.
Because the Veteran has undergone surgical fusion of his cervical spine, with a resulting post-surgical scar and this matter is part and parcel of the increased rating for a cervical spine matter, the issue of entitlement to a separate compensable rating for the post-surgical scar has been added to the title page.
The March 2011 remand referred the issue of entitlement to service connection for a left hip disability to the agency of original jurisdiction (AOJ) for disposition. The matter has not been adjudicated; thus, it is again referred to the AOJ for disposition.
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
The March 2011 remand requested that the Veteran be scheduled for VA orthopedic and neurological examinations in connection with his rating claims. The remand also requested that the neurological examination be completed before the orthopedic examination.
According to December 2011 internal correspondence from staff at the Cheyenne VA Medical Center (VAMC), the Veteran was asked to report for an MRI prior to the scheduled examinations. The Veteran refused to report for the MRI, believing that the March 2011 remand orders required him to undergo neurological testing first. VAMC staff explained to the Veteran that they did not want to submit him to an invasive nerve conduction study if an MRI was sufficient to provide VA examiners with the information needed to describe the manifestations of his service-connected left shoulder and cervical spine disabilities.
The Veteran did appear for his scheduled examinations, but was advised that the examinations could not take place without the requested MRI study. The examinations were rescheduled three times; on all three occasions, the Veteran refused to report for an MRI prior to the examinations. In December 2011, VAMC staff cancelled the open examination requests, citing a failure to cooperate with testing.
According to a March 2014 letter from the Veteran, he interprets the Board's remand as directing him to undergo neurological testing before an MRI. He asserts that Cheyenne VAMC staff failed to comply with the Board's remand directives by scheduling an MRI before conducting any neurological testing.
The Board acknowledges the Veteran's interpretation of the March 2011 remand directives. However, it is not the Board's intent that the Veteran undergoes invasive neurological testing if not deemed necessary. The obtaining of current examination findings and appropriate data so that the claims can be appropriately rated is critical.
Generally, a claimant is obligated to cooperate in the development of evidence, and failure to do so puts him at risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). The Veteran does not dispute that he willfully failed to cooperate with pre-examination medical testing. However, as the Veteran's failure to report for an MRI resulted from his genuine misunderstanding of the Board's intent in its March 2011 remand, the Board finds that his failure to cooperate is analogous to a showing of good cause for a failure to report for an examination. See 38 C.F.R. § 3.655(a). Under these circumstances, the Board will grant the Veteran another opportunity to report for VA orthopedic and neurological examinations. Id. The Board is also appreciative of the RO's patience in this matter.
At this time, the Veteran is advised to cooperate in the development of his claims, and that it is his responsibility to report for any scheduled examination. He is further advised that the future consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655.
An examination must also be scheduled to determine whether a separate compensable rating is warranted for post-surgical scarring associated with the service-connected cervical spine disability.
Turning to the claim for service connection for hypertension, the March 2011 remand requested a clarifying opinion from the March 2010 hypertension examiner. It appears that the request for this addendum was mistakenly cancelled in December 2011, and has not been renewed. Remand is required so that the requested opinion may be obtained. Stegall v. West, 11 Vet. App. 268 (1998).
On the claim for service connection for CAD, the record now establishes that the Veteran did not serve in Vietnam; thus, presumptive service connection for CAD as a result of exposure to dioxin-containing herbicides is not warranted. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).
However, the Veteran also asserts that his coronary artery disease may have been caused or aggravated by chest wall trauma sustained in a November 1998 in-service motor vehicle accident. A medical opinion addressing this theory of entitlement has not been obtained; thus a VA cardiovascular examination must be scheduled upon remand. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Updated VA treatment records must also be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The additional development requested herein may affect the outcome of the Veteran's TDIU claim. Accordingly, the Board considers the TDIU claim to be inextricably intertwined with the remaining issues on appeal. Consideration of the TDIU claim must be deferred pending development of these issues. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991).
Accordingly, the case is REMANDED for the following action:
1. Obtain VA treatment records since June 2012. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records.
2. Schedule the Veteran for a VA cardiovascular examination by an appropriate medical professional. The entire claims file, to include all electronic files, must be reviewed by the examiner.
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that coronary artery disease, or any other cardiac disability, was caused or aggravated as a result of a November 1998 in-service motor vehicle accident.
3. If deemed appropriate, schedule the Veteran for a VA examination to address the hypertension claim. After reviewing the claims file, the examiner should state whether it is at least as likely as not that the Veteran's pre-existing hypertension was aggravated, ( i.e., at least as likely as not made permanently worse, during active service), and if so, whether such aggravation was beyond the natural progression of the disease.
The examiner must discuss the evaluated blood pressure readings noted after the Veteran's November 1998 in-service motor vehicle accident, and state whether his hypertension underwent a permanent increase in severity as a result of that accident.
If it is determined that hypertension was not aggravated by service, the examiner should provide an opinion as to whether it is at least as likely as not (at least a 50/50 degree of probability) that the non-service-connected hypertension has been aggravated by any service-connected disorder. Any such opinion should be reconciled with Dr. Whitsitt's finding that the Veteran's blood pressure rises during an exacerbation of his service-connected cervical spine symptomatology. A complete rationale for all opinions expressed must be provided, and a copy of the examination report should thereafter be associated with the claims folder.
The term "aggravation" means a permanent increase in the claimed disability that is beyond the natural clinical course and character of the disease as contrasted to a temporary worsening of symptoms.
The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
4. Then, arrange for the Veteran to undergo neurological and orthopedic examinations of his cervical spine and left shoulder. The neurological examination should be conducted first, and that examination report made available to the VA orthopedic examiner in conjunction with that examination of the Veteran. Any disabling manifestations specifically attributable to a left shoulder disability, including, but not limited to, left shoulder impingement, degenerative joint disease, and/or brachial plexus injury, must be fully outlined and differentiated from neurological symptoms caused by any service-connected cervical spine disability.
The claims file must be made available to each examiner designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. Each examiner should set forth all examination findings, together with the rationale for the comments and opinions expressed. Any disabling manifestations specifically attributable to a left shoulder disability must be fully outlined and differentiated from any neurological symptoms caused by the service-connected cervical spine disability.
The neurologist should describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability, particularly involving the left upper extremity (in addition to orthopedic disability) as a manifestation of the service-connected cervical spine disability.
The examiner should then provide an opinion as to the Veteran's functional impairment as a result of the service-connected cervical spine and left shoulder disabilities.
The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
5. Then, arrange for an examination of the post-surgical scars associated with the Veteran's service-connected cervical spine disability. The examiner is to report the number, location and nature of scars that are associated with the Veteran's service-connected cervical spine disability. The examiner must also describe the size of the scars and whether any are painful or unstable.
6. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655.
These matters must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).